Forum

Mediation as an alternative solution to medical malpractice court claims

Neels Claassen

Abstract

Is there a crisis in the healthcare industry? Most certainly there is. Dr Motsoaledi, Minister of Health, publicly acknowledged the existence of such a crisis at a Medico-Legal Summit held at his initiative in Pretoria on 9 and 10 March 2015 at St Georges Hotel.[1] Currently, as recently confirmed by the MEC for Health, Ms Mahlangu, there are about 2 000 pending court cases against the Gauteng Provincial Health Department, the total quantum being claimed amounting to approximately ZAR 3.5 billion. During 2013/2014 this department spent about ZAR 256 million on legal costs payable to claimants’ attorneys. No budget for these expenses exists, resulting in payment being made from funds designated for the acquisition of medical equipment and other purposes.[1] This undermines the department’s ability to renew old equipment and upgrade to more modern equipment, resulting in even further claims. More claims are therefore to be expected. The Medical Protection Society also confirmed an increase in medical malpractice claims against their members of nearly 550% compared to 10 years ago. The quantum of claims that exceeded ZAR 5 million per claim, also increased by 900%.[2,3] The ripple effect of these increases in medico-legal claims causes insurance premiums for healthcare professionals to become exorbitantly expensive, resulting in some practitioners leaving the medical profession. Practitioners also act more defensively in applying their trade, resulting in additional and sometimes unnecessary tests that increase the costs of medical care and often cause further grounds for the institution of claims.

Author's affiliations

Neels Claassen, Neels Claassen is retired judge in the High Court of South Africa, South Gauteng, Johannesburg and a retired member of the Alternative Dispute
Resolution Association of South Africa and the South African Association of Arbitrators.